Too easy to file a lawsuit in the United States?

Is it too easy to file lawsuits in the United States? Should good faith settlement discussions or mediation be a prerequisite to the filing of a lawsuit? Lawsuits, like marriages, are easy to get into, but much harder to get out of. It costs practically nothing to start a lawsuit, and any minimally competent trial lawyer could draft all the paperwork in an hour or less. But once the lawsuit is started, it sets in motion a chain of events that, like nuclear fission, is not always easy to stop.

It also forces the defendant to incur the expense of incurring substantial legal expenses that the plaintiff, whose lawyer is on a contingency fee basis, does not incur. Then the discovery process kicks in, which initiates the real costs of litigation as lawyers bombard each other with demands for document production and interrogatories, followed by depositions, hiring of expert witnesses, and trial preparation activities. It’s not easy to stop this process. For one thing, once the attorney for the plaintiff has incurred costs, the only way to recoup them is by a settlement, something the defendant may have no interest in, at least before discovery is completed, when even more costs have been incurred and the case has become even more difficult to settle.

Why do we make lawsuits so easy to file? Why don’t the parties involved in the dispute at least make some attempt to settle their differences before a lawsuit is filed? Believe it or not, it is often the case that a defendant’s first notice that a dispute even exists is his receipt of the summons and complaint starting the lawsuit. This is because most attorneys routinely advise their clients NOT to speak with the opposing party (the subject of my next blog, so stay tuned).

But why does the American public tolerate this process? Why don’t we make it harder to start a lawsuit, perhaps requiring that the parties certify to the court that they have engaged in good faith settlement discussions before the case can be filed? Why not require the parties to mediate their dispute before the lawsuit can be filed? Most courts now routinely order the parties to mediate the case, but not until after it has been filed and most of the expensive discovery completed. Why waste all that money when the obvious common sense approach is to try to resolve the dispute before the lawsuit is filed.

My novel, The Litigators, asks this very question. If you read it, you will have a much better understanding of the real costs of justice in the American legal system. You can make your own judgments about whether we actually get our money’s worth.

Join me next week for Should lawyers really be telling their clients not to talk with the other side?